Blog Traffic

June 22, 2013

"Executive Summary: National Survey of Veterans Treatment Courts"

The title of this post is the title of this notable new paper on SSRN by Julie Marie Baldwin. Here is the abstract:

This summary reports the major results from the author’s dissertation research using data collected from a national survey administered to 79 Veterans Treatment Courts (VTCs) in 2012. This research produced a comprehensive national overview of VTCs; the complete findings, additional analysis, and an in-depth case study of a VTC can be found in her dissertation titled “Veterans Treatment Courts: Studying Dissemination, Implementation, and Impact of Treatment-Oriented Criminal Courts” (University of Florida).

And here are just a few of the notable findings from the paper's list of 28 "key findings":

VTCs are actively operating in most states with increases in membership and
continuing to disseminate nationwide.

About one in five eligible veterans opt out or drop out, primarily because they
consider the VTC program too rigorous or they do not want treatment....

The majority of VTC participants are male, white, and between 21 and 30 years of
age; served in OIF/OEF/OND and in the Army; and have veteran status and
trauma experience....

In the VTC participant population, there is a significant overrepresentation of veterans who are African American, Hispanic or Latino, under the age of 40, from
the OIF/OEF/OND era, or served in the Marine Corps.

Drug-related offenses were the most reported type of offense to bring male and
female veterans to VTC.

The majority of male and female VTC participants face substance abuse, mental
health, and family challenges.

The majority of VTCs broadly define their target populations in their mission
statements, but nearly half of VTCs exclude veterans who have been dishonorably
discharged or have a current felony charge.

Funding sources vary between VTCs, and slightly less than half receive funding
outside of their traditional court budget.

Most VTCs have a single judge, use a reward/sanction ladder, operate at the
county level, and utilize peer mentors....

All VTCs require participants to attend treatment sessions, and the majority require
participants to frequently appear in court and check in with VTC personnel, sign a
contract, plead guilty, and go on probation....

Passing drug screens was the most difficult requirement for both male and female
participants; however, difficulty levels with all other requirements varied by sex....

Overall, the majority of respondents believe there is definitely or probably a
relationship between military service, personal challenges, and involvement in the
criminal justice system.

Controlled Substances # 4: Investigating "Victimless" Drug Crimes

After
a hiatus in my guest blogging series, I’m back to finish up with a few more
posts this month. Thanks again so much
to Doug for the opportunity!

At first blush, devoting time to
drug investigations in a controlled substances course might seem
unnecessary. After all, a large
percentage of criminal procedure cases involve drug prosecutions. There are, however, many interesting legal
and policy questions that related to drug investigations that do not arise
elsewhere in the law school curriculum.
Many of these problems center around the “victimless” nature of drug
offenses.

As I’ll talk about more in my next
post, any course on drug crimes will inevitably include a discussion of whether
drug crimes are “victimless” in the moral sense. Regardless of where one comes out on that
issue, there’s no debate that drug offenses are victimless in narrower and
often underappreciated sense: they lack a complaining witness. Most robbery investigations begin after the
victim reports the crime to the police.
This is not true of drug crimes.
As a book designed as an investigative resource for drug enforcement
officers put it, "[f]requently
. . . drug enforcement agents must initiate their own cases."

The hidden, consensual nature of
drug activity presents a range of interesting investigative problems. The entrapment and public authority defenses,
racial profiling and pretextual stops, SWAT raids, wiretaps, police corruption,
the management of informants — though these issues can arise in the policing of
all crimes, they are uniquely important to drug enforcement. A chapter in my casebook on Investigating
Drug Crimes explores this terrain.

A number of key themes arise
throughout the material. Among them is
enforcement discretion. The absence of a
complaining witness can, in some cases, give the police an unusual amount of
discretion in drug investigations, including the power to pick a target and the
power to look the other way.

The entrapment case, Utah v. J.D.W., provides an example of
picking targets for undercover investigations.
There, a police officer with the Davis Metro Narcotics Strike
Force — which, like many drug investigation units, appears to have had war in
mind when deciding on its name — conducted a “reverse sting” at a suburban
mall. The officer approached over one
hundred people over the course of a few hours, offering to sell them marijuana. Only one person expressed interest, J.D.W., a
seventeen year old who purchased $35 worth.

As a matter of doctrine, J.D.W.
presents a concise application of the objective test for entrapment. The court upholds the conviction but, in a
concurring opinion, one judge offers an unusual critical assessment of the
officer’s actions. Judge Orne questions
the value of the operation, arguing that “[t]he overall societal cost of such
methods is simply too great to justify the arrest of a single juvenile
purchaser. I regret that the current
state of the law is such that I can do nothing more than fuss about it.” The Judge suggests that the Supreme Court or
the legislature consider adopting an “entrapment per se” defense, under which
the police offering drugs for sale would always constitute entrapment. To what extent should the law constrain the
discretion of law enforcement to choose drug targets? J.D.W.
is a great case for engaging this and related questions.

Enforcement discretion can cut the other way as well. Without a complaining witness to, well, complain
when the police drop an investigation, it can be easy to make a drug case go
away. This can lead to corruption, an
issue examined in the chapter. But, it
can create other policy problems as well.
The police might let a drug suspect they’ve caught red-handed remain
free in order to help make other cases against others. In the chapter on sentencing, we see the
police wait to arrest suspects until after a third or fourth controlled buy in
order to increase the individual’s sentencing exposure. This is commonplace enough that most students
don’t find it unusual at first glance, but would we have the same reaction if
the police let a bank robbery suspect hit a few more locations just to gain
sentencing leverage over them?

The police might also decide to let known offenders remain
free for investigative purposes. In a
wiretap investigation, for example, listening while peripheral participants
sell drugs may be considered necessary to build a case against the ultimate
target.

What if the police decide to let a drug dealer become an
informant and, in exchange, let the dealer sell without interference? In Schalk
v. Indiana, an understandably frustrated though badly misguided defense
attorney tried to expose this sort of arrangement. Schalk represented a man charged with selling
methamphetamine to a confidential informant named Hyde. Schalk believed Hyde was continuing to sell
drugs while working for the police and set out to prove it by hiring a couple
of teens to buy marijuana from Hyde.
Hyde sold marijuana to Schalk’s “investigators” but, when Schalk
contacted the police to turn the marijuana in and report Hyde’s crime, the
police did not react as he had expected.
Instead of arresting Hyde, the police arrested Schalk, who was
ultimately convicted of attempted possession of marijuana.

It is easy to question Schalk’s judgment and the case surely
presents an opportunity to talk with students about the ethical boundaries of
zealous representation. But underneath
Schalk’s poor choices are very real policy and practical problems. If the police are letting Hyde sell drugs
while he informs on others, can he be trusted to provide reliable
information? Any defense attorney in
Schalk’s position would want to get this information before a jury to call
Hyde’s credibility into question. But
how? If the police have made a deal to
look the other way in exchange for information from Hyde, it may be exceedingly
difficult to get this evidence.

On the other side of the equation, how should conscientious
police and prosecutors balance these issues in their work? In order to uncover hidden activity like drug
deals, the government will need to rely more often on informants, undercover
officers, and so on. What principles
should prosecutors and police use to guide them in deciding when to let
informants go unpunished in exchange for information, for example. Should the law play a more active role in
cabining this discretion?

June 21, 2013

As reported in this new Houston Chronicle article, headlined "Enron’s Skilling gets more than 10 years cut off sentence," today marked the official resentencing of perhaps the highest-profile white-collar defendant this side of Bernie Madoff. Here are the details:

Former Enron CEO Jeff Skilling had more than 10 years cut off his 24-year prison sentence today after a federal judge signed off on an agreement between the disgraced Houston executive and federal prosecutors.
Skilling, 59, could be released as early as 2017.

Skilling, in turn, agreed to drop his ongoing appeals and surrender any claim on the $40 million that had been seized by the government after his indictment for wire fraud, insider trading, conspiracy and related charges stemming from the 2001 collapse of one of Houston's leading companies.

The agreement between prosecutors and Skilling's attorney was announced last month.
That his sentence was going to be reduced was known for some time, as appeals courts ruled that one of the theories of the prosecution was not valid, and that one of the factors used to enhance the length of his sentence was improper. But it was unclear precisely what the sentence would have been as Skilling continued to fight to clear his name of criminal wrongdoing.

By settling with the government, the Enron matter — from a criminal perspective — is all but closed.... Implicit in the formal wording of the agreement was the government's desire to be done with Enron, a corporate scandal that eventually was dwarfed by the financial misbehavior and reckless decisions that helped bring about the economic collapse of 2008....

The sentencing agreement gave federal judge Sim Lake the discretion of a sentence range of 168 to 210 months imprisonment. Skilling has already served about 78 months, or 6 1/2 years. Skilling currently is housed at a minimum security facility in Littleton, Colo.

"As Prisons Squeeze Budgets, GOP Rethinks Crime Focus"

Weeks after his election as Georgia governor in 2010, Nathan Deal was pulled aside by a conservative state lawmaker with urgent business to discuss.
Rep. Jay Neal, a small-town pastor, said he had the seeds of a plan to cut Georgia's swelling prison population, which was costing taxpayers over $1 billion a year. The governor-elect didn't let Mr. Neal get far.

Georgia Gov. Nathan Deal has led the drive to reduce prison populations in his state.
"The minute I mentioned what I wanted to do, he jumped in with what he wanted to do," Mr. Neal recalled. "And it turns out we were talking about the same thing."

That pairing of a pastor with a former prosecutor, both Republicans, helped pave the way for dramatic revamping of Georgia's criminal code. New rules enacted over the past two legislative sessions are steering nonviolent offenders away from prison, emphasizing rehabilitation over jail time, and lessening the penalties for many drug and property crimes.

Georgia is the latest example of a Republican-led state drive to replace tough-on-crime dictums of the 1990s with a more forgiving and nuanced set of laws. Leading the charge in states such as Texas, Ohio, Kentucky, South Carolina and South Dakota are GOP lawmakers — and in most cases Republican governors — who once favored stiff prison terms aimed at driving down crime.

Motivations for the push are many. Budget pressures and burgeoning prison costs have spurred new thinking. Some advocates point to data showing that harsh prison sentences often engender more crime. Among the key backers are conservative Christians talking of redemption and libertarians who have come to see the prison system as the embodiment of a heavy-handed state. And crime rates are falling nationally, a trend that has continued in most of the states putting fewer people in jail.

The movement also dovetails with the quest of some Republicans to soften the party's edges and to plunge into new policy areas that affect the poor and the disadvantaged. The initiatives have drawn praise from groups that aren't often allied with the GOP, including the National Association for the Advancement of Colored People and the American Civil Liberties Union. The result is some unlikely bedfellows, with the conservative American Legislative Exchange Council working alongside the ACLU.

"Criminal justice is the area where conservative thinking has most changed with the times," said Eli Lehrer, a former GOP Senate staffer and conservative activist in Washington, who has written extensively on the push for new sentencing rules. He describes the push as "the most important social reform effort on the right since the rise of the pro-life movement in the 1970s."

Just over half of the states have embarked on criminal-justice overhauls of varying scope over the past five years, with 19 of those efforts led by Republican governors or GOP legislatures and nine by Democratic governors or legislatures. Some of the most aggressive moves have come in states, many in the South, with incarceration rates well above the national average....

The downturn has been particularly welcome in states that had projected a continued surge in prison numbers. Ohio, which was bracing for an inmate population of over 57,000 by the end of the decade, has seen its number fall by nearly 1% a year since 2009.

Changes to sentencing laws haven't sailed everywhere. In Indiana, an aggressive push in 2011 by then Republican Gov. Mitch Daniels got watered down — and eventually abandoned — after it ran into opposition from prosecutors. GOP Gov. Rick Scott in Florida cited public safety last year when he vetoed a bill to cut the sentences for nonviolent drug offenders.

The conservative quest to rethink criminal sentencing and rewrite state penal codes got its start in Texas, when GOP lawmakers in 2007 balked at the need to build three new prisons to house an anticipated 17,000 more prisoners by 2012. They decided instead to revamp the state's probation system and boost funding for addiction treatment and rehabilitation by $241 million.

The state prison population has declined by nearly 6,000 inmates since 2008 after decades of rapid growth and during a time when the state's own population has continued to swell. In 2011, Texas shut a prison for the first time in state history.

Behind the Texas efforts stood a conservative local think tank, the Texas Public Policy Foundation, and one of its top donors, a wealthy oil man from Odessa named Tim Dunn. Mr. Dunn paid to establish a center within the foundation in 2005 to focus on overhauling the state's criminal code.
An evangelical Christian with a strong libertarian bent, Mr. Dunn said he watched for years as Texas' crime rate continued to climb even while its prison population swelled. "I had come to see our justice system as imperial, as intent on maintaining the authority of the king. It was no longer communal or restorative," he said.

Under the directorship of Texas lawyer Marc Levin, the policy foundation became the hub of a national movement as requests for legislative help poured in from other states. The center adopted a formal platform in early 2010 and took its campaign national under the name Right on Crime. It soon had the backing of a long list of conservative supporters, among them former Florida Gov. Jeb Bush, former Reagan Attorney General Ed Meese, former drug czar Bob Bennett and David Keene, until recently president of the National Rifle Association.

The group and its Republican followers are sensitive to charges that they are going soft on crime, "that we want to hug a thug," as Mr. Dunn puts it.
But they insist they are moving to correct a system that tilted too far toward punishment, without any gauge for success or failure. State prison populations swelled 700% between 1970 and 2009, from 174,000 inmates to 1.4 million.

Legislatures across the country have rewritten their criminal-justice codes. A few Democratic governors have jumped in, including Arkansas's Mike Beebe and Hawaii's Neil Ambercrombie. New York and Connecticut made changes even before Texas did.
But "on balance, it has been conservatives who have been out front," said Adam Gelb, who directs a national criminal-justice initiative at the Pew Charitable Trusts, which has worked on initiatives across the country.

In many states, former law-and-order prosecutors and judges have led the effort. In others, pastors-turned-lawmakers have jumped in. Many describe eureka moments that altered their views....

For Ohio Republican state Sen. Bill Seitz, a turning point came in the late 2000s, when he watched the voters in his county, which includes Cincinnati, twice vote down levies to build a new jail. "It became all the clearer to me how we pass tough sentencing laws with a blind eye to the fiscal impacts," he said.

In Georgia, Gov. Deal and Rep. Neal arrived at their partnership via similar and very personal paths .
Mr. Deal says his evolution came about largely on the streets of his hometown of Gainesville, an hour's drive north of Atlanta. For nearly a decade, his son Jason has presided over a drug court designed to rehabilitate addicts charged with felonies and to keep them out of prison.
The future governor often went to graduation ceremonies where recovering addicts would tell their stories. "They all have their own stories, but a common thread runs through all of them," Gov. Deal said. "They had lied. They had stolen. They had alienated their spouses, their parents, their siblings. But they were given a second chance, and they had been rehabilitated."...

Supporters of the changes in Georgia and other states note that elected officials such as Gov. Deal have done little to publicize their efforts, much less campaign on them.
Ben Jealous, president of the NAACP, sees that as a missed opportunity. "This is an area where Republicans can really connect with black voters," he said.

Gov. Deal acknowledges there are risks in championing prison changes. "You always worry about being accused of being soft on crime," he said. But through a spokesman he said he now "very much wants to be seen as the face of prison reform in this state."

I concur with the sentiment emphasized above that the prison/sentencing reform movements on the right are a very important and consequential social issue shift for the GOP, and one that could have a profound long-term impact on the fate and fortunes of both political parties in the decades to come. However, as suggested by the second highlighted point, unless and until GOP politicians believe they can secure votes and not just save money and lives through reform, this reform movement will not likely become as transformative as it might otherwise could be.

Federal judges issue new prisoner release order to force California to comply with prior orders

As reported in this Los Angeles Times article, headlined "Federal judges order California to free 9,600 inmates," the ever on-going federal litigation concerning overcrowded California prisons took another notable turn yesterday. Here are the details:

A trio of federal judges ordered Gov. Jerry Brown to immediately begin freeing state inmates and waived state laws to allow early releases, threatening the governor with contempt if he does not comply.

Citing California's "defiance," "intransigence" and "deliberate failure" to provide inmates with adequate care in its overcrowded lockups, the judges on Thursday said Brown must shed 9,600 inmates — about 8% of the prison population — by the end of the year.

Unless he finds another way to ease crowding, the governor must expand the credits that inmates can earn for good behavior or participation in rehabilitation programs, the judges said.
"We are willing to defer to their choice for how to comply with our order, not whether to comply with it," the judges wrote. "Defendants have consistently sought to frustrate every attempt by this court to achieve a resolution to the overcrowding problem."

If Sacramento does not meet the inmate cap on time, the judges said, it will have to release prisoners from a list of "low risk" offenders the court has told the administration to prepare.

Brown had already taken steps to appeal the court-imposed cap to the U.S. Supreme Court, and he vowed to fight the latest ruling as well.
"The state will seek an immediate stay of this unprecedented order to release almost 10,000 inmates by the end of this year," he said in a statement.

He had immediate backing from the California Police Chiefs Assn. The court order shows "a complete disregard for the safety of communities across California," said the group's president, Covina Police Chief Kim Raney.
"Pressing for 9,000 more inmates on the streets," Raney said, shows "an activist court more concerned with prisoners than the safety of the communities."

But a spokesman for the Los Angeles County Sheriff's Department said it did not expect to have to contend with a flood of ex-convicts to watch over.
"It is never a positive step when prisoners have to be released," said spokesman Steve Whitmore, "but the Sheriff's Department is prepared for this eventuality."

Brown has until July 13 to file his full appeal with the high court, the same body that two years ago upheld findings that California prison conditions violated the constitutional prohibition against cruel and unusual punishment.

Lawyers for inmates, meanwhile, said Brown has few options but to let some prisoners go.
"At this point, the governor is an inch away from contempt," said Don Specter, lead attorney for the Prison Law Office, which in 2001 filed one of two lawsuits on which the judges based their order. "He must make every effort to comply immediately."
...
[T]he three-judge panel that oversees prison crowding, U.S. District Judges Lawrence Karlton and Thelton Henderson and U.S. 9th Circuit Court of Appeals Judge Stephen Reinhardt.... [in their] order accuses the state of "a series of contumacious actions" and challenges Brown's sincerity about obeying their orders. They noted that the governor lifted an emergency proclamation that allowed inmates to be transferred to prisons in other states, for example.
Requests from prison lawyers that the administration be held in contempt "have considerable merit," the judges wrote.

The governor's reluctance to set prisoners free early has the backing of legislative leaders, including Senate President Pro Tem Darrell Steinberg (D-Sacramento). He joked openly on Wednesday about intending to kill any population-reduction plans the courts might order the governor to submit to the Legislature.
Republicans in the Legislature have pushed a plan to resume prison expansion in California....

California voters may be more willing than Brown to release inmates to reduce crowding. In a recent USC Dornsife/Los Angeles Times poll, they were wary of sacrificing public safety, but at the same time supported steps to reduce crowding.
Sixty-three percent said they favored releasing low-level, nonviolent offenders from prison early.

The full 51-page order in Coleman v. Brown coming from the special three judge panel can be accessed at this link.

June 20, 2013

As reported in this new local article, headlined "Supreme Court upholds reprieve by Gov. Kitzhaber of death row inmate Gary Haugen," the top court in Oregon issues a lengthy opinion in a case that ought to be of interest to those who follow the death penalty and those who care about modern clemency procedure and powers. Here are the ruling's basics via the press report:

The Oregon Supreme Court announced today it has upheld Gov. John Kitzhaber’s temporary reprieve of Gary Haugen’s execution. Chief Justice Thomas Balmer, writing for the court, concluded that the reprieve was “valid and effective,” and turned aside Haugen’s argument that he had a legal right to reject the reprieve.

“I am pleased that the Oregon Supreme Court affirmed my constitutional authority to issue a reprieve,” Kitzhaber said in a statement. “I renew my call for a reevaluation of our current system that embraces capital punishment, which has devolved into an unworkable system that fails to meet the basic standards of justice. I am still convinced that we can find a better solution that holds offenders accountable and keeps society safe, supports the victims of crime and their families and reflects Oregon values.”

The reprieve will last during Kitzhaber’s current tenure as governor. That will end on Jan. 12, 2015, or if Kitzhaber seeks and wins another term in 2014, until Jan. 14, 2019.

Haugen, 51, is a twice-convicted murderer who was the first who sought to die since Kitzhaber allowed two other executions to proceed during his first term in 1996 and 1997. All three waived appeals.

The high court overturned a ruling in Marion County Circuit Court, where a visiting judge upheld Haugen’s side in the first round last summer.

In this post exactly 10 days ago, I noted that the Supreme Court would soon hand down opinions its three long-pending sentencing cases Alleyne, Peugh and Descamps. In that post I further stated "based on my belief that the Supreme Court remains the most pro-defendant appellate court on sentencing issues in the country, I ... guess/predict that the defendant prevails in all three of these cases."

Today the Supreme Court handed down Descamps, the last pending opinion of this trio of sentencing cases, and sure enough the defendant has prevailed yet again before the Justices. Here is the early report via SCOTUSblog:

Descamps. Per Kagan. The modified categorical approach does not apply to statutes that contain a single indivisible set of elements.

This is about enhanced sentences for repeat offenders.
It is 8-1. The dissenter was Justice Alito.

In Plain English, it is now harder for the government to use the facts of a prior conviction to enhance a federal criminal sentence.
Here is the opinion in Descamps.
The decision of the court of appeals against the defendant is reversed.

Based on a very quick review of all the opinions here, I think it is possible that Descamps will prove to be the most consequential of all the Supreme Court's criminal sentencing work this Term.

"White-Collar Sentences Get a Fresh Look"

A hearing scheduled for Friday in a Houston federal court on whether to substantially reduce former Enron Corp. Chief Executive Jeffrey Skilling's 24-year prison sentence comes at a time of growing debate about the rules for punishing white-collar criminals.

Individuals convicted of federal crimes are sentenced using a set of guidelines in which "points" are added or subtracted relating to various aspects of a person's conduct and the crimes involved. Over the past several decades, the potential penalties for a range of crimes have greatly increased in severity, with particularly large increases in certain types of fraud cases, according to legal experts.

Critics of the guidelines in white-collar cases contend that they have come to rely too much on financial-loss calculations, which can quickly mushroom when the crime involves a public company whose stock price falls in connection with the misdeeds. In certain cases, a public-company executive could face life in prison, said James Felman, a Tampa, Fla., defense attorney and member of a recently formed American Bar Association task force looking at proposing revisions in the guidelines for economic crimes.

The U.S. Sentencing Commission, the guideline-writing body created by Congress in the 1980s, has identified possible revision of the economic-crime rules as a priority. The commission has scheduled a September symposium in New York to get input on possible changes.

The guidelines "should be scrapped in their entirety," said Jed Rakoff, a New York federal judge and member of the new ABA Task Force, in a speech earlier this year. For instance, putting heavy emphasis on the calculated loss in determining fraud sentences "does not fairly convey the reality of the crime or the criminal," said Judge Rakoff, a Clinton appointee and longtime critic of aspects of the guidelines. He recommended replacing the arithmetic calculation system with one where judges could use a broad set of factors, none of which would automatically carry extra weight.

More judges seem to be departing from the guidelines. A Sentencing Commission study issued last December found that the percentage of fraud cases in which federal judges gave sentences below the guideline recommendation jumped to 23% of cases for 2007 to 2011 from 9.6% for 1996 to 2003. These percentages don't include cases where the Justice Department recommended a below-guideline sentence for reasons that included cooperation by the defendant in an investigation.

The increasing gap between the guideline calculations and actual sentences was a factor in the Sentencing Commission's decision to look at revising the economic-crime rules, said one person familiar with the matter.

June 19, 2013

Guest post with more thoughtful perspectives on Peugh

I am very pleased to have received and to now have time to post the following "quick thoughts" of Professor Todd Haugh concerning last week's SCOTUS Puegh decision (basics here):

First, Justice Sotomayor is really establishing herself as the Court's current sentencing scholar, particularly as to Guidelines issues. By my quick tally, since taking her seat in 2009, she has drafted or significantly contributed to seven or eight important sentencing cases, while others are at two or three. I imagine her status as the Court's only member to have regularly sentenced defendants as a trial court judge has something to do with this -- she often seems to be the voice expressing the practicalities of sentencing (both from the defendants' and judges' standpoints), which has carried the day in Peugh and some of her other recent opinions (Pepper and Southern Union come to mind, as does the Alleyne concurrence). Scalia's and Breyer's overall impact may prove to be greater, but Sotomayor appears to be asserting herself in this area (and willing to spar with Alito).

Second, following that thought and in line with some of the comments [to this prior Peugh post ], the Peugh opinion is about the actual practice of federal sentencing versus how the system operates in theory. The dissent was sunk by its first argument -- that the Guidelines do not constrain district court discretion. While in theory, based on the language and structure of 3553(a) and the Court's reasonableness review jurisprudence, that may be true (and every defense attorney argues in the hopes of making it true), the realities of in-the-trenches sentencing demonstrate that increased Guideline ranges equal increased sentences (and thus risk of increased punishment under ex post facto analysis). This fact is well-documented by the Commission's recent Booker report, it's yearly data, it's survey of judges; and a host of academic articles concerning the psychological process of judges when sentencing (i.e., anchoring and adjustment, etc. -- see footnote 1 in Judge Calabresi's concurrence in Ingram [discussed here]). It's why DOJ advocates to members of Congress and the Commission for additional sentencing enhancements -- increased risk to defendants of higher punishments means more bargaining power for prosecutors. Query whether the majority's argument weakens if variance rates climb both in number and, most importantly, length.

Third, while I don't think this opinion is going to have huge practical effects on federal sentencing because the Seventh Circuit was an outlier (and there is likely harmless error in many of those cases), the opinion may have a lot of rhetorical value. Defendants basically got a win-win here -- assurance that they will be sentenced under the most favorable Guidelines per the majority and lots of juicy language to quote when they argue for a variance per the dissent. I would expect to see Peugh cited in a lot of future federal sentencing memos.

Judges, however, may have gotten the short end of the stick because they now face even more complexity when they determine sentences (a trend that has continued since Booker). Before Puegh, they had to calculate the Guidelines, then decide on departures, then consider a 3553(a) variance (seven factors; four purposes of punishment). Now, Peugh suggests courts should also consider how the evolution of the Guideline at issue (pre- and post-offense) weighs on the sentence. That could mean at least two more Guideline calculations (1987 version if Doug Berman is your defense counsel and the current, harsher version of the Guidelines if you are facing a prosecutor who reads this blog), but it could mean even more (what about Guideline ranges before and after major changes by the Commission, e.g., before and after SOX or Dodd-Frank, to demonstrate that evolution?).

Florida Governor signs bill seeking to speed up executions

As reported in this recent local article, headlined "Gov. Rick Scott signs bill to speed up executions in Florida," the Sunshine State has a new law seeking to improve the administration of capital punishment. Here are the basics:

Gov. Rick Scott signed a bill into law Friday aimed at accelerating the pace of the death penalty process in Florida that could make the governor the most active executioner in modern state history.

The measure, dubbed “the Timely Justice Act” by its proponents, requires governors to sign death warrants 30 days after the Florida Supreme Court certifies that an inmate has exhausted his legal appeals and his clemency review. Once a death warrant is signed, the new law requires the state to execute the defendant within six months.

In a lengthy letter accompanying his signature, Scott aggressively countered allegations by opponents that the law will “fast track” death penalty cases and emphasized that it “discourages stalling tactics” of defense attorneys and ensures that the convicted “do not languish on death row for decades.”

The bill, which passed the House 84-34 and was approved by the Senate 28-10, allows the governor to control the execution schedule slightly because it requires him to sign a death warrant after the required clemency review is completed and only the governor may order the clemency investigation. Scott’s office told lawmakers that because at least 13 of the 404 inmates on Death Row have exhausted their appeals, his office has already started the clock on the clemency review....

Supporters said 154 inmates have been on Florida’s Death Row 20 years and 10 have been there for more than 35 years. The average time for appeals runs 13 years, which is below the national average of 14.8 years.

Death penalty opponents flooded the governor’s office with letters and petitions, urging him to veto the bill and ask the Legislature to instead change what they consider a deeply flawed death penalty process in Florida....

The law imposes strict time limits for when records must be submitted from courts, prosecutors and defense attorneys in an attempt to streamline the appeals process. It also requires reports to the Legislature on how many cases have been pending, reestablishes a Death Row appeals office for North Florida and bans attorneys from handling capital appeals if they have been twice cited for constitutionally incompetent handling of cases.

The signing letter referenced in this article by Gov Rick Scott is available at this link. And, building mostly on this legal development in Florida, Stateline has this lengthy new report headlined "Some States Speed Up Death Penalty," which starts this way:

Supporters and opponents of capital punishment agree: The current death penalty is expensive, inefficient, and arbitrary. Some state legislatures have reacted to those faults by abolishing the death penalty, while others are trying to speed it up.

Since 2007, six states have abolished capital punishment — most recently Maryland, which did so this year. But other states, troubled by some of the same problems, have moved in the opposite direction.

June 18, 2013

The title of this post is the title of this Note available via SSRN and authored by Lauren Salins and Shepard Simpson. Here is the abstract:

Excessive incarceration is a national problem. Across the country, prisons face dangerous levels of overcrowding, which has led to unconstitutional conditions of confinement and the inability of states to effectively rehabilitate their inmates. Ardent public support of “tough on crime” policies inhibits state legislatures from enacting successful reforms. In turn, states spend large percentages of their budget to sustain failing and ineffective corrections systems. By some estimates, states could save hundreds of millions of dollars annually if they reduced prison populations through proactive reforms, such as early release programs and diversionary tactics. In light of these factors, a consideration of the U.S. Supreme Court’s decision in Brown v. Plata to uphold an unprecedented prisoner release order is both timely and necessary as the case approaches its two-year benchmark.

This Note argues that the Court’s holding in Brown did not overstep the judicial boundaries imposed by the Prisoner Litigation Reform Act (PLRA), but rather was a step in the right direction toward acknowledging and remedying constitutional violations occurring in California’s severely overcrowded prison system. Moreover, the Court’s analysis of PLRA will help courts navigate the statute’s procedural requirements.

While California has made progress toward complying with Brown’s prisoner release order, this seminal case sheds light on the need for proactive reform in prison systems nationwide to prevent unconstitutionally high levels of overcrowding in the first place. As states are confronted with this new “release or reform” reality, this Note will facilitate the much-needed discussion surrounding long-term solutions to the overcrowding epidemic in U.S. prisons.

Seeking comments on what to say in comments to the US Sentencing Commission about its priorities

A wise colleague wisely suggested to me that this year might be an especially wise time to convert all my ideas and concerns about the work of the US Sentencing Commission into formal comments for formal submission to the USSC as a formal response to this formal statement of the USSC's proposed priority policy issues for the amendment cycle ending May 1, 2014.

The USSC's six-page Federal Register statement of tentative priorities lists just about every topic that has consumed the recent work of the Commission, ranging from mandatory minimums to post-Booker sentencing patterns to the child porn guidelines to the drug guidelines to economic crimes and lots of stuff in between (including even some back-end sentencing stuff like the compassionate release guidelines). Nevertheless, there are still plenty of topics not mentioned that I think should be high on the Commission's agenda, ranging from the impact of sequester on the operation of the federal criminal justice system to the enduring need for serious guideline simplification to the overwhelming problem of undue sentencing severity.

Here is the official statement of the official rules for submitting official public comments to the USSC:

The Commission hereby gives notice that
it is seeking comment on [its] tentative
priorities and on any other issues that interest
ed persons believe the Commission should address
during the amendment cycle ending May 1, 2014. To
the extent practicable, public comment
should include the following: (1) a statement of
the issue, including, where appropriate, the scope
and manner of study, particular problem areas
and possible solutions, and any other matters
relevant to a proposed priority; (2) citations to applicable sentencing guidelines, statutes, case law,
and constitutional provisions; and (3) a direct and concise statement of why the Commission
should make the issue a priority.

Appropriately, the final line in the USSC's notice includes this fitting kicker: "Pursuant to 28 U.S.C. § 994(
g), the Commission also invites public comment that
addresses the issue of reducing costs of incarceration and overcapacity
of prisons, to the extent it is
relevant to a proposed priority."

So, to the extent practicable, I would love to hear from readers about what they think I should make sure to put into my formal comments to the USSC. I have until July 15 to get this done, but I would very much like to have a document ready to send out not long after I enjoy the rocket's red blare this coming Independence Day.

With overcrowded prisons and under court order, Italy is the California of Europe when it comes to punishment practices

This lengthy new article from the International Business Times prompts my post title because it details how Italy is struggling through prison problems that sound a lot like what California continues to deal with. The piece is headlined "Italy’s Overcrowded Prisons: A Growing Tragedy Of Epic Proportions," and here are excerpts:

Prisons across Europe are facing an overcrowding crisis -- a manifestation of at least three trends: tougher sentencing by judges (particularly for drug-related offenses), a painfully slow justice system and lack of money to build new facilities to accommodate the excess number of inmates.

This crisis is particularly acute in Italy, where correctional facilities are bursting at the seams with an avalanche of convicted men and women.
According to the Prison Observatory of Antigone, a Rome-based prisoners' rights organization, almost 67,000 inmates are housed in Italian facilities that were designed to hold only 45,000 -- meaning they are at a capacity of more than 140 percent, among the highest rates in the European Union, where the average capacity is just under 100 percent.

The situation in Italian prisons has become so grave that in January of this year, the European Court of Human Rights declared that Italy had just one year to improve conditions in the country's prisons, while ordering Rome to fork over 100,000 euros ($132,000) to seven inmates who raised a test case with the court.
“Their conditions of detention had subjected them to hardship of an intensity exceeding the unavoidable level of suffering inherent in detention, and violated the European Convention on Human Rights’ prohibition against torture and cruel, inhuman or degrading treatment or punishment,” the court stated.

Italy's president Giorgio Napolitano (who has no real power to influence public policy) agreed with the court's ruling, saying it amounted to "a mortifying confirmation of the persistent failure of our state to guarantee the basic rights of detainees awaiting judgment and serving sentences.”
He added that "decisions can no longer be postponed to overcome a degrading reality for the inmates and for the prison guards.”...

Three years ago, having declared a state of emergency in the nation's prisons, the government unveiled a plan to spend 675 million euros ($900 million in 2013 currency) to build 11 new prisons and as well as extensions to existing jails.
But the financial collapse has largely scuttled that program.

As in France, many Italians are being jailed for minor crimes -- about 60 percent of convicted prisoners are serving terms of less than three years. Moreover, about 38 percent of all inmates in Italy are drug offenders (versus figures of 14 percent in Germany and France and 15 percent in England and Wales).
In addition, 42 percent of Italy’s prisoners are pre-trial detainees (versus a European average of 28.5 percent); while more than one-third of inmates are immigrants.

"There are so many people awaiting trial for six, seven, eight months," said Cesare Cececotto, an inmate at Regina Coeli, a famous prison in Rome.
Another inmate named Giuseppe Rampello complained to Reuters about the large number of foreigners in prison.
"We are talking about a prison where you can be in a cell with people with six different languages, six different habits, where there is one who prays as an observant Muslim five times a day and another who swears five times a minute," the 63-year-old inmate said....

In northern prisons, foreigners far outnumber Italians – Antigone said that in jails in Milan and Vicenza, more than 60 percent of inmates are foreign, while in the mountain territories of Trentino Alto Adige and Valle d’Aosta, the proportion reaches nearly 70 percent.
Cececotto quipped that as the only Italian in his cell, “Thank God, I speak a bit of English and a bit of Spanish.”

In its 2012 report, Antigone declared that "the heart of the prison problem is the penal code.”
Napolitano's wish to reform prison sentencing guidelines was compromised by political infighting and the change in government earlier this year.
"Something must be done because the prisons are close to collapse," a senior prison official, Margherita Marras, told Reuters....

An inmate named Claudio told Inter Press Service about conditions in his Vicenza facility in March 2013 -- where he had to share a 7.6 square-meter (80 square foot) cell with two other people and stay there 21 hours per day.
“Once you excluded the space taken up by beds and drawers, each inmate was left with 90 centimeters (35 inches) to himself. We had to take it in turns to stand up,” he said.
“There was no possibility for (inmates) to engage in any activity.”

The crisis in Italy’s prisons is nothing new. As long ago as 1995, the New York Times published an article warning: “Bursting Population Overwhelms Italy’s Prisons.” That piece, written by Celestine Bohlen, noted for example that so many prisoners were housed in Milan’s San Vittorio facility that police were forced to relocate some 400 inmates elsewhere, some to as far away as the isle of Sardinia.

At that time, Italy had 54,000 prisoners in a system designed to hold only 29,000.
After almost two decades the problem has only worsened.
“The continuous increase in the jails overcrowding and the significant presence of foreign prisoners makes pursuing the rehabilitative aim of punishment extremely complex and often in vain,” Napolitano told the head of the Italian prison administration department....

Ornella Favero, director of Ristretti Orizzonti, said overcrowding could be relieved by providing a significant number of inmates, especially pre-trial detainees and non-violent drug offenders, access to noncustodial sanctions, including alternatives like fines, community service, house arrest and treatment for drug addiction.
In Spain, Germany and France, more than 100,000 convicts are outside of prison walls – the corresponding figure in Italy is less than 20,000.

June 17, 2013

"Lafler and Frye: Two Small Band-Aids for a Festering Wound"

The title of this post is the title this notable new paper by Albert Alschuler now available via SSRN. Here is the abstract:

This article contends that two recent Supreme Court decisions concerning the assistance of counsel in plea bargaining do not warrant the hype bestowed upon them by professors and the press. Lafler v. Cooper and Missouri v. Frye did not significantly change the law, and even if these decisions had been bolder, they could not have done much to make effective legal assistance more likely. Our plea-bargaining system both subjects defense attorneys to serious temptations to disregard their clients’ interests and makes it impossible to determine whether defendants have received effective assistance.

Much of the article focuses on a partly empirical, partly jurisprudential issue that divided the majority and dissenting justices: Does plea bargaining reward defendants who plead guilty or instead penalize those who stand trial? The author of the principal dissenting opinion, Justice Scalia, maintained that plea bargaining enables defendants “to serve less time than the law says [they] deserve[].” Justice Kennedy responded for the majority that defendants “who take their case to trial and lose receive longer sentences than even Congress or the prosecutor might think appropriate, because the longer sentences exist on the books largely for bargaining purposes.”

The article contends that the issue can be resolved and that the majority has it right. America did not achieve the world record for mass incarceration by giving 95% of all convicted offenders less punishment than they deserve. Indeed, no sane nation would be likely to sentence 95% of its convicts to less than they deserve or than effective deterrence requires. This nation would be far more likely to impose additional punishment on a small minority to save the cost of trials. It’s no coincidence that the nation most dependent on plea bargaining is also the nation that incarcerates the highest proportion of its population. By lowering the cost of imposing criminal punishment, plea bargaining has given America more of it.

The Lafler-Frye majority disregarded the implications of its position when it declared plea agreements beneficial to both parties. If post-trial sentences are imposed simply for the purpose of inducing guilty pleas (as the Supreme Court recognizes five-to-four), plea bargaining benefits both parties only in the sense that a gunman’s demand for your money or your life benefits you as well as the gunman. Proposals commonly are treated as coercive when refusing them would leave recipients worse off than they ought to be.

Along the way, the article considers what plea agreements should look like in a system that does what bargaining prosecutors and defense attorneys acknowledge (and boast) that they do, and it criticizes David Abrams’ empirical conclusion that plea bargains really aren’t bargains at all.

After an apology and less than a week in jail, ex-NFL star Chad Johnson gets out

As reported in this new local news and AP report (which includes a video), "Chad Johnson apologized Monday for disrespecting a judge when the former NFL star slapped his attorney on the backside in court last week, and his immediate release from jail was ordered." Here is more:

Broward County Circuit Judge Kathleen McHugh accepted Johnson's apology and cut his 30-day jail term for a probation violation to the seven days he had already served since the rear-swatting incident. Johnson, a flamboyant wide receiver formerly known as Chad Ochocinco, said in court that he'd had time to think about why his flippant attitude was wrong — especially in a domestic violence case.

"I just wanted to apologize for disrespecting the court last time," said Johnson, wearing a tan jail jumpsuit with his hands shackled at the waist. "I apologize. I did have time to reflect on the mistakes I made in this courtroom."

McHugh noted that in a previous hearing Johnson had put his arm around a female prosecutor's shoulders, prompting the prosecutor to tell him twice not to touch her. The judge also pointed out that when Johnson head-butted his then-wife, Evelyn Lozada of the reality TV show "Basketball Wives," she suffered a three-inch gash on her head that required eight stitches. The judge called those injuries horrific.

McHugh also said Johnson failed to appreciate "the gift of probation" after pleading no contest to battery in the altercation last August with Lozada, which prompted her to quickly file for divorce. Johnson, 35, was in court because he had failed to meet with his probation officer for three straight months. "I find that's an arrogant disregard for a court order," the judge said.

McHugh ordered Johnson to perform 25 hours of community service and attend domestic violence counseling sessions twice a week during probation, and she extended his probation an extra three months through mid-October.

The attorney who had his backside slapped, Adam Swickle, said Johnson will fully comply with all probation conditions and hopes to resurrect his NFL career.... "He understands that this is the kind of situation that can derail a person's career," Swickle said. "We're very confident he will do what he should do."

"The Impact of Neuroimages in the Sentencing Phase of Capital Trials"

The title of this post is the title of this notable new research paper now available on SSRN and co-authored by Michael Saks, N. J. Schweitzer, Eyal Aharoni and Kent Kiehl. Here is the abstract:

Although recent research has found that neurological expert testimony is more persuasive than other kinds of expert and non-expert evidence, no impact has been found for neuroimages beyond that of neurological evidence sans images. Those findings hold true in the context of a mens rea defense and various forms of insanity defenses. The present studies test whether neuroimages afford heightened impact in the penalty phase of capital murder trials.

Two mock jury experiments (n=825 and n=882) were conducted online using nationally representative samples of persons who were jury-eligible and death-qualified. Participants were randomly assigned to experimental conditions varying the defendant’s diagnosis (psychopathy, schizophrenia, normal), type of expert evidence supporting the diagnosis (clinical, genetic, neurological sans images, neurological with images), evidence of future dangerousness (high, low), and whether the proponent of the expert evidence was the prosecution (arguing aggravation) or the defense (arguing mitigation).

For defendants diagnosed as psychopathic, neuroimages reduced judgments of responsibility and sentences of death. For defendants diagnosed as schizophrenic, neuroimages increased judgments of responsibility; non-image neurological evidence decreased death sentences and judgments of responsibility and dangerousness. All else equal, psychopaths were more likely to be sentenced to death than schizophrenics. When experts opined that defendant was dangerous, sentences of death increased. A backfire effect was found such that the offering party produced the opposite result than that being argued for when the expert evidence was clinical, genetic, or non-image neurological. But when the expert evidence included neuroimages, jurors moved in the direction argued by counsel.

First-cut reactions as to what is big, and not so big, about Alleyne's reversal of Harris

I will likely have a lot to say about the specifics of the Sixth Amendment discussions in all the Alleyne opinions later today once I get more time to review the decision more closely. But I have three quick reactions about the ruling and its potential impact I wanted to share right away. I will give this trio of reactions these labels: big, not-so-big, could-be-huge.

The Big of Alleyne: though serious talk of a "Booker" fix to the advisory guidelines sentencing system has not had much juice for a very long time, the Alleyne ruling serves as a final nail in the "mandatory topless guidelines" idea that made the rounds as a potential legislative response to Blakely and Booker in the federal system. That "fix," which would have required judges to do fact-finding to raise guideline minimums without impacting maximums, depended on the validity and vitality of Harris. And Harris is now a goner.

The No-So-Big of Alleyne: though persons imprisoned now based on mandatory minimums triggered by judicial fact-finding might hope Alleyne is a new jurisprudential key to freedom, a host of doctrices may ensure very few new imprisoned persons get much benefit from Alleyne. For starters, the retroactivity doctrines of Teague and AEDPA may make it hard for those long ago sentenced to get their Alleyne claims even heard in court. Moreover, the harmeless error doctrines of Cotton and Recuenco may make it easy now for judges to say, even in those cases in which the issue can still be raised, that any Sixth Amendment error was harmless.

The Could-Be-Huge of Alleyne: there are any number of shaky exceptions and carve-outs to the full application of Apprendi doctrines, ranging from the prior-conviction exception of Almendarez-Torres to all sorts of efforts by lower courts to refuse to acknowledge Apprendi's potential impact on all sorts of judicial fact-finding that impacts punishment realities. If Alleyne (which comes just a year after Southern Union) portends a Court now willing and eager to keep taking up Apprendi issues and extending the reach of the Sixth Amendment, we all might be in for quite an interesting Sixth Amendment ride over the next few Term. (And, for the really creative, perhaps Alleyne could be combined with Peugh to perhaps even generate procedural protections even for federal defendants sentencing in a post-Booker world.)

And here is the money quote from the majority opinion: "Because there is no basis in principle or logic to distinguish facts that raise the maximum from those that increase the minimum, Harris was inconsistent with Apprendi. It is, accordingly, overruled." Alleyne, slip op at 15.

Based on a much-too-quick first read, this Alleyne ruling seems to be everything (and not much more) than what should have been expected and predicted when the Court granted cert to reconsider Harris. With all new Justices filling in the roles and votes of their predecessors, Harris gets reversed now because (and only because) Justice Breyer is no longer willing to prop up the ruling. And, as he continues to play Hamlet with Sixth Amendment doctrine, Justice Breyer also continues to dump on the whole Apprendi line of case.

As I predicted in this post last November (and especially with speculations precedents inother areas perhaps being in jeopardy), the most interesting and enduring significance of Alleyne is the sparring between Justices Sotomayor and Alito over stare decisis. I suspect after the con law folks get over their disappointment that we did not get any huge SCOTUS rulings today, there will be some enduring buzz over what all the Justices had to say (and not say) about stare decisis inAlleyne.

June 16, 2013

"Closing the Widening Net: The Rights of Juveniles at Intake"

The title of this post is the title of this notable new piece by Tamar Birckhead now available via SSRN. Here is the abstract:

Should juveniles have more, fewer, the same or different procedural rights than are accorded to adults? This question, posed by Professor Arnold Loewy for a panel at the 2013 Texas Tech Law Review Symposium on Juveniles and Criminal Law, requires us to examine our goals for the juvenile court system. My primary goal, having practiced in both adult criminal and juvenile delinquency forums for over twenty years, is to ensure that the reach of juvenile court is no wider than necessary, as research indicates that when children are processed through the juvenile court system and adjudicated delinquent, the impact is not benign. Potential negative consequences of juvenile delinquency adjudications are felt in such areas as housing, employment, immigration and education as well as enhanced penalties for future offenses. Further, longitudinal studies show that children exposed to juvenile court reoffend at higher rates and are stigmatized by even the most minimal contact with the juvenile court system.

This Article, the second in a series on the disproportionate representation of low-income children in the U.S. juvenile justice system, examines the intake process, which operates as one of the primary gateways to juvenile court. The Introduction describes a typical case, highlighting the shortcomings of the current process and the risks — short- and long-term — that they pose to juveniles. Part II presents the nuts and bolts of the intake stage, including details regarding who conducts the screening, its purpose, and the assessment criteria applied. Part III discusses the procedural rights of juveniles at intake according to the U.S. Supreme Court, state courts and legislatures. Part IV analyzes what can — and often does — go wrong with the intake process, resulting in a wider net being cast around minorities and low-income children and families. Part V offers proposals for reform, including providing counsel to children prior to intake; mandatory advising of children and their parents by the juvenile probation officer conducting the intake interview; and introducing an objective rubric for the evaluation of delinquency complaints by juvenile probation officers.

As I have mentioned before, I
have generally been disinclined to blog about my
on-going work as a member of the Joint Task Force to Review the
Administration of Ohio’s Death Penalty (background here).
But there was some notable developments at this past week's public meeting of the Task Force which I thought would be of broad interest to readers of this blog. This report from the Cleveland Plain Dealer, headlined "Task force urges state panel be created to evaluate death penalty prosecutions," provides the highlights:

A state task force is recommending that Ohio create a panel under the state attorney general that would review potential death penalty cases before prosecutors could take them to trial.

Under current Ohio law, the power to decide when to pursue the death penalty rests in the hands of individual county prosecutors.
But the recommendation by the Joint Task Force to Review the Administration of Ohio's Death Penalty would give the new panel authority to disapprove death penalty charges.

The recommendation is an attempt to address disparities in death penalty prosecutions in Ohio, said Ohio Public Defender Timothy Young, who chaired a subcommittee that drafted the recommendation.
“The two biggest disparities my group has dealt with are race issues and geographic issues,” Young said. In the case of race issues, they revolve around the race of the victim.
“I think it’s vitally important that we do something about disparity and the death penalty,” Young said. “The numbers are overwhelming.”

Once a prosecutor made a decision, the panel -- made up of staff from the attorney general’s office and former county prosecutors appointed by the governor -- would review that decision.
It would look at the circumstances of the case, giving particular consideration to the races of those charged and the victims, said Jo Ellen Cline, government relations counsel to the Ohio Supreme Court and the court’s liaison to the joint task force.
“It would be a significant change in how things operate now,” Cline said.

The task force’s recommendation has a long way to go before it could become reality. It likely will be late in the year before the task force finishes its work, and some recommendations, including this one, would require legislative action to change state law.
Given that, not all of the details on how the panel would work, or if a prosecutor would have some recourse if opposed to the panel’s decision, are not nailed down. That specificity would likely come from the General Assembly, Cline said.

Chief Justice Maureen O’Connor, with the Ohio State Bar Association, established the joint task force in 2011. It is charged with determining if capital punishment in Ohio is administered fairly and judiciously and to examine if adjustments are needed....

Far and away the majority of Ohio’s capital cases come from urban areas, Young said. And while they should naturally see more, simply because of population, their numbers are also greater per capita.
“We have more than 40 counties that have never brought a death penalty case,” Young said.

There are a myriad of possibilities for why that is the case. The goal of the recommendation is to find more of a common standard, Young said.
“Right now you have 88 prosecutors, all well intentioned,” Young said. “Our thought process was that if it went through a central committee that would even out those 88 applications.”
Young said there was was significant debate on the recommendation, which was approved by a vote of 8 to 6.

Much of the debate dealt with the impact it would have on what now is a matter of prosecutorial discretion. And Young said he would not be surprised if those opposed to the recommendation write a dissenting opinion for the final report.
Cline agreed. “They’re concerned that the prosecutors were elected by the folks in their jurisdictions to make these decisions,” she said.

Other developments in this week's meeting also made news as revealed by this Columbus Dispatch article headlined "Former Justice Stratton says she’s now opposed to death penalty." It starts this way:

In nearly three terms on the Ohio Supreme Court, former Justice Evelyn Lundberg Stratton sided with the majority most of the time when convicted murderers were put to death.
From 1996 through the end of last year, spanning the time Stratton was a justice on the court, Ohio executed 49 men by lethal injection.

But nearly six months after leaving the court, the Republican, now an attorney in private practice in Columbus, has changed her views.
Stratton yesterday told members of an Ohio Supreme Court task force reviewing administration of the death penalty that she didn’t have a strong feeling about capital punishment while serving on the court.

“I have evolved to where I don’t think the death penalty is effective,” she said in an interview. “I don’t have a moral inhibition ... Overall, it’s just not the best way to deal with it on a number of different levels.”

Stratton said she has long opposed executions involving mentally ill defendants, but she now opposes capital punishment in general because she doesn’t see it as a deterrent and victims’ families don’t gain the finality they seek when the murderer is put to death.